Legal Studies Syllabus Notes
a) Basic Legal Concepts
1. Define law A law is a special type of rule made by a person
or institution that has the power to make laws. The power to make
laws is known as Sovereign Power (in democratic countries such as
Australia, the parliament has Sovereign Power). The law is
universal, meaning that it applies consistently and constantly,
always in effect. The law also applies to everyone, regardless of a
persons position, they must comply with the law Laws are strictly
enforced by society (police and courts who act on behalf of
society) and those who breach it often face sanctions, fines,
community service orders or most seriously, imprisonment.
2. Distinguish between customs, rules, laws, values and
ethicsCustoms: Can be defined as the ways of behaving that have
been established through longstanding traditions. When the behavior
of people has become so common that the behavior is expected all
the time, a custom has been developed Customs are not written down,
they are passed down from generation to generation e.g. through
parents, education, media Enforced through social pressure rather
than through legal processRules and Laws: Laws are universal where
the apply to everyone all the time, and they emanate from the state
and are enforced by the state Rules however, apply only to certain
people at certain times e.g. when you are at school, the rules at
the school only apply when you are enrolled and when you are
actually present at school. At school you may have to wear black
socks, however at home, you are free to choose the colour you
please. Rules are recorded either in written form or through the
use of symbols e.g. No Smoking symbol. When a rule is recorded
there is less opportunity for people to argue or seek to avoid it.
This means that rules are more enforceable than customs. Penalties
such as fines usually apply to ensure rules are followedValues and
Ethics: The values that society holds are a reflection of the
things society considers important Values are consequently
reflected in law E.g. our society values the concept of private
property and for this reason there are laws to protect property
Ethics are defined as those things that a society considers right
and wrong. When we act ethically, we act the right way e.g. if we
find 200 dollars, we take it to the police station However, values
and ethics in Australia are not constant, and thus, for the law to
be effective, it must be adaptable e.g. values of women in society
have changed greatly, where we now have laws protecting the rights
of women, such as the Anti-Discrimination Act 1977 (NSW) and the
Sex Discrimination Act (Cwlth). Not everyone will hold the same
values, and thus, as a general rule, values will begin to influence
the legal system once a significant proportion of the society holds
a particular view.
3. Describe the characteristics of just laws and the nature of
justiceJust Laws:In order for a law to be valid, it must be just. A
just law has several features: It is equal (treats everyone the
same) It is based on widely held values as discussed previously It
is utilitarian. Utilitarianism refers to the philosophy of ensuring
an action achieves the greatest good for the greatest number of
people It aims to reduce inequalities It must minimize delay, to
resolve disputes as soon as practicable It must not be
retrospective, the law must be made for the future. The law must be
known, before they can be enforced.
The Nature of JusticeJustice is a combination of equality,
fairness and access, where in many societies, it is represented by
Lady Justice. The blindfold suggests that she acts impartially and
the scales represent need to weigh up the evidence whilst the sword
is used to enforce her decisions.Equality Justice requires laws
that do not discriminate and that are applied equally to all
people. The enforcement of the law must also be equalFairness
Fairness is another feature for justice. A factor of fairness
includes ensuring the law does not have a particularly harsh effect
on an individual Another factor of fairness is the right to appeal
a decision.Access Individuals must have the ability to access the
law in order for justice to be achieved They should have access to
legal information and assistance and be able to understand the
law
4. Define and investigate procedural fairness and the rule of
law
Procedural Fairness Often referred to as Natural Justice The
main principle of procedural fairness is the concept of fair
treatment before the lawThe doctrine of procedural fairness
includes: The right of a person to participate in legal proceedings
in which they have an interest e.g. if a person was charged but
denied the right to attend a trial, this would be unfair The right
of a person accused of wrongdoing to know the accusation made
against them. This is essential because it allows the defendant to
prepare defense and gather evidence The right of the defendant to
have a hearing, during which they are able to present evidence The
right of to have a matter head before an unbiased court. It is for
this reason that judges and juries must set aside their personal
views and only refer to evidence presented The right to test the
evidence presented in a case AKA cross-examination where each side
is able to question witnesses and their evidence given for the
opposing side The right of the accused to not have a previous
criminal convictions or accusations brought up in a trial
Rule of Law The rule of law is a key principle in legal systems
of democratic societies, and it means that the use of arbitrary
power (unrestrained use of power) is eliminated In modern
democracies, constitutions outline the powers of government and
they must act within these powers e.g. if the government attempts
to create a law outside of its power as existent in the
constitution, the Governor-General and the High Court of Australia
must intervene (this is known as the separation of powers, and is
discussed further on) Another crucial element to the rule of law is
that laws must be known and must have a certain application, which
basically entails the idea that once laws are made, people are made
aware of it so they can comply with it.Some features of the legal
system that comply with the rule of law are: An independent
judiciary the courts cannot be influenced by parliament Controls
placed on enforcement agencies (police) to ensure there is no abuse
of power The accused should not be forced to incriminate themselves
Legal defence for the accused must be free to operate without
interference by the prosecution Accused must be informed of
allegations made against them Criminal laws must never be
retrospective Governments are bound by a constitution Human rights
are protected e.g. freedom of speech
5. Define anarchy and tyranny
Anarchy Anarchy occurs when a society is left without an
effective legal system This is common after times of war or natural
disaster when governments, courts and law enforcement agencies
cannot operate effectively. E.g. in 2005 Hurricane Katrina
devastated New Orleans, and following this disaster, law and order
broke down in the city, leading to widespread looting.Tyranny In
some respects, tyranny is the complete opposite to anarchy It
occurs when there is no check on the powers of lawmakers and
enforcers Constitutions, if they exist, are disregarded and
consequently there is no rule of law In countries where there is no
democratically elected government, power is taken rather than given
by the people E.g. junta military leaders hold power in Burma, a
group of army generals who crush any resistance to their rule
b) Sources of contemporary Australian common law
1. Outline the origin of common law
Upon Colonisation, Australia adopted the common law legal system
which originated in England, where it was known as English common
law. Other countries such as new Zealand, US, GBR and Canada use
this system Common law can be best described as a collection of
legal principles and rules derived from decisions of judges in high
courts The term common law and AKA judge-made law is used to
differentiate between law developed by judges and law developed by
parliament Judges are required to obey statute law (law made by
parliament), however, when no relevant statute law exists, a judge
will turn to common-law principles to resolve a dispute If both a
common and statute law exists, then the statute law must be
followed FIRSTThe System of Precedent One of the main features of
the common-law system is the doctrine of PRECEDENT A precedent can
be defined as a judgement made by a court that establishes a point
of law. A judge who follows a precedent is trying to resolve a
dispute in a certain way because an issue of the past with similar
characteristics was resolved in this way previously. The process of
following a precedent is known as stare decisis or literally to
stand by a decision. The aim of a precedent is to ensure that
everyone is treated equally and fairly in their dealings with the
legal system There is both persuasive and binding precedent.
Binding precedent occurs when a court must follow the precedent
already set, regardless of their opinion as to whether it is
correct or not. In NSW, a precedent is binding when it has been set
by a higher court. E.g. the district court will have to follow a
precedent set by the Supreme Court of NSW. The judge is only bound
by the ratio decidendi the reason for the decision of the higher
court. Other statements such as the judges opinion obiter dicta may
be taken into account but do not create precedent. Precedent only
applies if the case is sufficiently similar to the one that set the
precedent.
The Adversary System As we know, the legal system in Australia
is based on the English system of law. One of the main features of
English Law is the use of the Adversary System. This means that in
each case there are two opposing sides who argue a case before a
court, which is presided over by a neutral third party. As long as
they abide by the rules of evidence, each side controls what
evidence it introduces to the court and the witness it may choose
to call to support its case. The opposing side then tests the
evidence by asking questions of witnesses (cross-examination) in
order to counter the other sides evidence. At the end of the case,
the judge/magistrate or a jury will decide which version of events
they believe; one side will one and the other will lose. Neither
the judge/magistrate nor the jury have any powers to test evidence;
for example, a judge cannot cross-examine a witness. There are many
criticisms of the adversary system. Some people argue that it
creates a legal system where the case is won by the best and most
persuasive argument rather than on evidence
Equity alongside Common Law Inflexibility within Common Law
introduced by the Provisions of Oxford led many people to believe
that justice could only be achieved through the king, who was the
guardian of justice and had power to overrule and decision made by
courts. This made for an effective way for people to bring cases
for which there was no precedent The king decided on cases using
the concept of equity (or fairness) and his conscience.
Essentially, the Kings decisions were not based on the dictates of
precedent, but rather on achieving the fairest of outcomes The
Office of the Chancellor had grown in power during the reign of
Henry II (1154-1189). The Chancellor played many roles: he was the
kings secretary, the royal Chaplain and most importantly, the
keeper of the Kings conscience. The King was thus able to delegate
the Chancellor the role of hearing and deciding on the growing
number of disputes that came to the King for resolution By 14th
century, Courts of Chancery were established to administer the new
laws of equity. These courts provided for a broader range of legal
remedies compared to the common law courts e.g. the main remedy in
common law is to order monetary compensation while equity law
provides for other remedies that more closely relate to the concept
of fairness such as injunctions (a court order that requires a
person not to do something e.g. not to print a particular story in
a newspaper) and specific performance (a court order that requires
a person to fulfill an obligation they undertook as a part of a
contract). Consequently, over time, two types of judge-made law
developed: common law and equity For several hundred years, England
had two parallel legal systems: common law and equity. It was clear
that these two conflicted, sometimes providing alternate decisions
in the same dispute. Finally, the two systems were combined under
the Judicature Act 1873, which created the Supreme Court of
Judicature. Under this act courts were instructed to take into
account the principles of equity. Therefore, the principles of
equity are now considered a part of the common-law
system.Principles of Equity Law: To modify a remedy in common law
that is deficient, or to create a new remedy To develop remedies
for wrongs that common law does not recognizeIn order to obtain an
equitable remedy, the person that seeks the remedy must not breach
any law whilst obtaining it. Equity law supports assistance of the
diligent rather than those who act in a lazy or tardy way.
2. Examine the hierarchy and jurisdiction of state and federal
courtsAustralia is a federation and as a result, there are two
levels of law that apply: state and federal. The Australian
Constitution grants certain legal powers to the Commonwealth govt.
and others to state and territory governments. Consequently, there
are separate state and federal jurisdictions, each having its own
court structure. All courts have original jurisdiction (power to
hear certain cases for the first time) e.g. High Court has original
jurisdiction to hear matters relating to the constitution. Many
courts also have appellate jurisdiction. This means that the court
has the right to hear cases that were originally dealt with by a
lower court which have been subject to an appeal
State Courts Hierarchy
NSW, like all other states, has a hierarchal court structure.
This means that they are ranked. Position of courts in the
hierarchy determines the type of cases they will hear. There are
three tiers, inferior, intermediate and superior courts.Court
NameCourt TierDescriptionJurisdiction
The Local CourtInferiorAKA Magistrates Court, lowest court in
the hierarchy. Aim is to settle disputes at a local level, cheaply
and quickly. Less emphasis on formality in this court. It has two
jurisdictions in which it hears matters: Criminal Jurisdiction:
there are two areas of criminal law over which local court has
jurisdiction 1. All summary offences. These are less serious, e.g.
drink driving and shoplifting. A magistrate deals with these,
determining guilt and issuing punishment.2. Committal proceedings.
These are preliminary hearings for more serious offences known as
indictable offences. The aim of the committal is for the police to
demonstrate there is significant evidence that a jury would likely
convict this person (prima facie). If the magistrate believes this
is so, the case will be scheduled for a trial in a higher court.
Civil Jurisdiction: the Local Court hears only relatively minor
civil matters such as debt claim. Matters involving up to 60000
dollars will be heard.
Coroners CourtInferiorRole is to investigate unexplained deaths
and fires. Much like the Local Court, the Coroners Court can commit
a defendant to trial in a higher court if there is a prima facie
case.
Childrens CourtInferiorDeals with any summary or indictable
offence involving persons under 18. The only exception is murder,
where this court conducts a committal proceeding and the trial is
held in the Supreme Court.Any summary or indictable offence for
children under 18.
Land and Environment CourtInferiorDeals with matter involving
environmental planning and land compensation e.g individuals and
business offences, such as illegal pollution
The District CourtIntermediateDeals with more serious matters
and is presided over by a judge, your honour. Criminal Jurisdiction
Deals with the majority of indictable offences such as robbery and
assault. Cases heard before a judge, whose role is to decide on
questions of law, and a jury which has the role of determining
guilt. If defendant is found guilty, judge is responsible for
sentencing Civil Jurisdiction Hears civil matters involving
60000-750000 dollars. In most cases, a judge will determine the
case alone however a small jury of 4 or 6 people may be used.
Appellate Jurisdiction Can hear appeals from the inferior courts. A
case may be appealed because a penalty imposed was inappropriate,
an error in law may have been made by the magistrate or new
evidence has arisen.
The Supreme CourtSuperiorNSW Supreme Court is the highest court
in the state hierarchy. In general, it hears the most serious cases
and those that involve difficult points of law. It is a Court of
Record, which means that its decision create precedent, and
therefore, the Supreme Court is important in the establishment of
common law. Criminal Jurisdiction This court hears the most serious
indictable offences such as murder, sexual assault and kidnapping.
All cases heard before a judge and a jury who have the same roles
as in the District Court. Civil Jurisdiction - There is no upper
limit on civil matters (only minimum 750000 dollars). Like the
District Court, most civil matters are handled be a lone judge,
although a smaller jury may be used Appellate Jurisdiction In NSW,
a special division of the Supreme Court (Court of Appeal) hears
appeals to the Supreme Court. The right to appeal is not automatic,
and applicants must demonstrate that they have a good reason. This
is known as seeking leave to appeal.
Federal CourtsIn addition to the various courts of each state,
the Commonwealth has its own hierarchy of courts that deal with the
matters of federal law.The Federal Magistrates Service Has
jurisdiction in areas of family law and also parts of bankruptcy
and trade practices law. The service also hears appeals from
Commonwealth tribunals, such as the Human Rights CommissionThe
Family Court of Australia Est. in 1976 as a part of the sweeping
changes to family law that were introduced by the Family Law Act
1975 (Cwlth). A special court that deals with matters of family
law, particularly in divorce, custody of children and the
maintenance and division of property. Most matters dealt with by a
single judge.The Federal Court of Australia Also established in
1976, like the states Supreme Court, is a Court of Record. Its
jurisdiction is broad and includes matters such as trade practices,
industrial relations, intellectual property (copyright), taxation
and immigration. Most matters dealt with by a single judge of the
Federal Court, however appeals are heard by the Full Court of the
Federal Court, with three judges. Appeals can come from the
decisions of a single judge from the Federal Court, single judges
from the states Supreme Court and appeals from state Supreme Courts
that exercise federal jurisdictionThe High Court of Australia Main
role is to deal with matters involving the Constitution. For the
first time dealing with a matter, cases are heard by a single
judge, except where the Constitution is involved, when five judges
hear the case. Is a Court of Record and consists of a Chief Justice
and six other justices.
3. Outline the role and structure of parliament and the
legislative process
Australia is a parliamentary democracy, meaning that the peoples
of Australia elect representatives who make decisions and pass
laws. If those elected no longer operate satisfactorily, there is
an opportunity for the people to vote them out. Role of Parliament
Key role is to pass laws Any laws passed by parliament are called
statutes. As discussed previously, Australia also used judge-made
law or Common Law. Statute law is considered to be superior to
common law. Legislation has power to alter common law, and in cases
where there is both common and statute law available, statute law
has precedence.Parliamentary StructureWith the exception of
Queensland, all state parliaments and the Commonwealth Parliament
in Australia are bicameral (a parliament with two houses), with an
upper house and lower house. At federal level, the two houses are
the Senate (the Upper House) and the House of Representatives (the
Lower House). Above the two houses is the Governor-General, who is
elected for maximum of three years. House of Representatives (Lower
House) Despite being known as the Lower House, the HOR is actually
the more powerful house It is sometimes known as the House of
Government, as the political party that holds the majority in this
house forms the government, and its leader becomes Prime Minister
Has 150 members, with each member representing an electorate. Each
electorate has approximately 80000 voters, so some electorates end
up being much larger (e.g. in rural areas) than others in big
cities. Traditionally, HOR members have been drawn from three major
political parties: Australian Labor Party, Liberal Part of
Australia and the National Party of Australia. The Liberal and
National Parties have for many years been in coalition, meaning
that they tend to vote as a group on most issues. Coalition was
also formed so that the two parties could create a majority to form
government The key role of the House of Representatives is to make
new laws and amend existing ones. When a new piece of legislation
is first introduced into the House, it is known as a Bill. If it is
passed, it is enacted into law it becomes an Act of Parliament.
Most new legislation is introduced in the HOR.The Senate (Upper
House) Is otherwise known as the States House, because its role is
to represent each of the six states and the two territories. Each
state is represented by 12 senators, each territory by 2. Senators
represent an entire state, not just an electorate, which means that
minor parties (those with fewer votes) have a greater chance of
being elected to the Senate rather than the HOR. Each senator is
elected for 6 years, which is double that of HOR members. A system
of rotation means that half of the senate retires every 3 years;
retiring senators may seek re-election for another 6 years. An
exception to this occurs with territory senators, who serve 3 year
terms. The Senate plays a very important role in reviewing
legislation proposed by the HOR. It is common for the political
party in government to be a minority in the Senate. This means that
their power in the HOR is balanced by the power of the opposition
in the Senate. The Senate has equal law-making powers to the HOR,
except that it is not allowed to introduce or amend Money Bills
laws that introduce new taxes or deal with the normal expenditure
of government. The Governor-General Is the representative of the
Queen in Australia. The role of the Governor-General was created by
the Constitution of the Commonwealth of Australia. The
Governor-General is appointed by the Queen on the advice of the
Prime Minister Although the Governor-General acts as the Queens
representative, the role of the Monarch in legislative and
parliamentary processes has diminished greatly since the passing of
the law in the Australia Acts 1986 (Cwlth and UK). In practice, the
sole remaining function of the Queen is just to appoint the
Governor-General The Governor-General is a member of the Federal
Executive Council which also includes the Prime Minister and the
Cabinet Ministers; these are the senior ministers of government.
Most often, the Governor-General follows advice given by these
ministers, however, there are four key areas where the
Governor-General may exercise power contrary to this advice. These
are known as Reserve Powers and include: 1. The power to appoint
the Prime Minister where an election has resulted in a hung
parliament (when no political powers have clear majority)2. Power
to dismiss a Prime Minister who has lost the confidence of the
parliament. This has happened only once, in 1975 with the dismissal
of Prime Minister Whitlam3. Power to dismiss a Prime Minister who
has acted unlawfully4. Power to dissolve HOR at the request of the
PM; results in an election being called
One of the most important roles of the G-G is to ensure lawful
acting within the Federal Executive Council; within the powers set
out by the Constitution. In this sense, the G-G is the protector of
the Constitution All legislation that is passed by the HOR and the
Senate must go to the G-G for approval (Royal Assent). Once Royal
Assent has been given and the Bill is published in the Government
Gazette (similar to a newsletter of laws), it becomes law. It is
very rare for a G-G to refuse assent. One reason for refusing may
be because a Bill is unconstitutional
The Legislative ProcessAny parliament has the power to make
statute law, whether it be state, territory or federal governments.
The Constitution determines areas in which each level of government
has the power to make laws. When a statute law is made, the
parliament that makes it and the year that it was made is will
become part of the Act name e.g. law relating to the use of ethanol
in petrol in NSW is contained in the Biofuel (Ethanol Content) Act
2007 (NSW). Similarly, the Corporations Act 2001 (Cwlth) is a
federal statute governing the conduct of companies that are
incorporated.The mechanism for passing laws in NSW and federal
parliaments (and other states with bicameral parliaments) is the
same and is summarized in the chart below:
The Formation of the BillAny MP has the right to introduce a
bill (referred to as a Private Members Bill). However, it is most
common for the government to sponsor a bill. In this case, a
Minister is appointed to develop the Bill e.g. Health Minister for
a Bill about hospitals. The actual writing of the Bill (legislative
drafting) is carried out by trained advisors. The First Reading
Minister or the private member of responsible for the Bill will
introduce it to parliament in the House in which they sit. At the
first reading, the Minister or private member reads the title and
distributes copies of the Bill for members to readThe Second
Reading The parliament debates the bill, where members express
their opinions about it Committee Stage Each individual clause of
the Bill is debated, although mostly the members only wish to speak
about certain controversial clauses. It is at this stage members
can propose amendments to the Bill.The Third Reading House is asked
to vote on the Bill. If it is successful, it will be passed onto
the Upper House for approval.The Upper House The entire process is
repeated, with one exception. If the Bill was first introduced into
the Senate, then the first reading is not repeated. If it is not
passed in the Upper House, it is returned to the Lower House for
amendment, or may be rejected completely.Assent If the Upper House
passes the bill, it is sent to the Governor-General (in the case of
Commonwealth Parliament) or the Governor (in the case of state
parliaments) for Royal Assent. Once this has been given, the Bill
becomes law and is referred to as an Act of Parliament. The act is
effective from the date specified within it
4. Describe the function of delegated legislation
Delegated legislation is legislation that is made by the bodies
subordinate to parliament. These bodies include government
departments and local councils. They are authorized to make laws by
an Act of Parliament This authorization by an Act is known as an
enabling act. These Acts define what the bodies can make laws about
and how far their authority extends. E.g. The Parliamentary
Committees Enabling Act 1996 No 143 (NSW) lists powers and rights
of various committees of the Parliament of NSW. Once delegated
legislation has been developed, either house has power to disallow
the legislation. If no action is taken within 15 days of it being
presented to parliament, then the legislation becomes law. The
principles of the Constitution apply to all matters of delegated
legislation e.g. if NSW parliament has no constitutional power to
make laws on a particular matter, it cannot delegate to another
body to make the lawThe four main types of delegated legislation
include1. Regulations: delegated legislation made by the
Governor-General, state Governors or members of the Executive
Council2. Ordinances: laws made for territories of Australia, such
as the Australian Antarctic Territory, usually by the body
governing the territory3. Rules: delegated legislation made for
government departments, usually by the departments4. By-laws: laws
made in accordance with the Local Government Act 1993 (NSW). This
Act allows local councils to make laws that apply within the
boundaries of the local government area
5. Explain the difference between the division and separation of
powers
A constitution can be defined as a document that outlines the
rules for the governing body of a nation. It is the rules that
control the power, authority and operation of a parliament. In
Australia, the Australian Constitution governs the Parliament of
the Federation of Australia, while each of the six states also has
its own Constitution.
The two constitutions that affect citizens of NSW include:1. The
Australian Constitution: created by the Commonwealth of Australia
Constitution Act 1900 (UK). British Parliament passed this act when
Australia federated. It came into effect on 1st January 1901, the
official date of federation.2. The Constitution of NSW: this was
created by the Constitution Act 1902 (NSW).The main role of the
Constitution is to determine the exercise of powers by the
Commonwealth Government and which powers remain with state
governments. This is known as the division of powers.The Division
of Powers One of the most important aspects of the Constitution is
its role in dividing power between the states and the Commonwealth
parliaments. The constitutions of each state provide state
parliaments with the powers to make laws on any matter that affects
the state. The Australian Constitution doesnt really restrict these
rights. In fact, state parliaments have law making powers that can
concern a much broader range of issues in comparison to federal
parliament.
Exclusive Powers Powers that are only granted to the
Commonwealth Government such as in trade, foreign relations and
defence. Section 90 of the Constitution grants exclusive powers to
the Cwlth in the area of customs. Section 51 also makes reference
to the power of the Cwlth to make laws in relation to trade. This
section was used in 1976 to block sand mining on Fraser Island in
the famous case : Murphyores Inc. Pty Ltd and Others v. The
Commonwealth of Australia and Others (1976) 136 CLR 1 where
Murphyores was blocked from mining, by the Commonwealth Government,
which used its exclusive constitutional powers relating to trade
Section 51 makes reference also to the defence of Australia. Under
this section, the Cwlth has responsibility for naval and military
defence of the Commonwealth, which is reinforced in Section 114 : A
state shall not, without the consent of the Parliament of the
Commonwealth, raise or maintain any naval or military force. This
forbids the state from making their own defence force.
Residual Powers Powers that the states retained after
federation. These are outlined in the constitutions of the various
states, which confer authority in areas of health, transport,
education and importantly, law and order. It is for this reason
that there is much difference between states regarding issues such
as criminal law, traffic regulations and educational
policy.Concurrent Powers Powers that are shared between the
Commonwealth and state governments. There are many areas of
government where both have authority. For example, in relation to
health care, state has responsibility for running hospitals,
ambulance services etc. whereas the Commonwealth is responsible for
raising health care funding through the Medicare system. Where
state and federal laws conflict, the Constitution is clear that the
laws made within the limits of the constitution by the Commonwealth
have precedence: 'When a law of a state is inconsistent with a law
of the Commonwealth, the latter shall prevail, and the former
shall, to the extent of the inconsistency, be invalid. Section 109
of the Australian Constitution.
Separation of PowersIn addition to dividing power between the
Commonwealth and the states, the Constitution also ensures that no
one group within the government can dominate. The Commonwealth
divides Commonwealth powers between three separate bodies:1. The
parliament, whose powers are outlined in Chapter 1 of the
Constitution, in particular section 51.2. Federal Executive
Council, where its members include the Prime Minister, cabinet
Ministers and the Governor-General. Their powers are contained in
Chapter 2 of the Constitution.3. The Judicature or courts. The
constitution established a federal Supreme Court (known as the High
Court of Australia)(section 71) and also granted federal parliament
the right to create other federal courts (section 71). Under the
constitution, High Court judges cannot be removed from their
position without approval from both houses and the
Governor-General.
The aim of the separation of powers is to ensure that authority
is evenly distributed between these groups. By doing this, each
checks on each other, ensuring no abuse of power. The following
demonstrates the separation of powers:
6. Examine the role of the high court in the interpretation of
the Constitution
The High Court is the highest court in Australia, and has 3 main
aims:1. To protect the Constitution, by ensuring that governments
act within their powers as set out by the Constitution.2. To
exercise its original jurisdiction (as previously discussed, refers
to cases that are first heard in the High Court). These include
constitutional challenges, where the actions of the Commonwealth
are seen as unconstitutional, such as the Tasmanian Dam case
(mentioned earlier).3. To act as the final Court of Appeal within
the Australian legal system. The High Court can hear an appeal from
any of the state Supreme Courts or from the Federal Court. One
important role is the interpreting of the Constitution. Like all
other Acts of Parliament, the Constitution is not always clear, and
courts must interpret and define certain words and phrases. The
Court ensures that parliament, the courts and government
departments do not exceed their constitutional authority e.g. in
the Murphyores case as previously mentioned, where the High Court
was required to decide whether the Commonwealth had powers in this
matter.
7. Examine the characteristics of ATSI peoples customary law
Aboriginal people are thought to have arrived in Australia
somewhere between 60000 and 80000 years ago. Over these years, a
complex customary legal system had been developed. This system was
based on oral traditions and was strongly linked to the notion of
kinship It is important to note that there is no single Aboriginal
nation, there were approximately 500 of them. Each of these clans
had their own territories, traditions and rituals and importantly,
developed their own laws. Consequently, there are now thousands of
variations of ATSI customary law. Therefore, it is impossible to
talk of ATSI law as a single entitiy. Instead, we can only observe
the aspects of their law that are common to all groups of ATSI
nations e.g. the importance of the Dreamtime to the establishment
of the law and role of the land and spirituality in ATSI
law.Spiritual Basis of ATSI Customary Law
ATSI peoples did not develop the type of industrial society that
existed in Europe The ATSI tradition views the land and nature as
having great spiritual significance, and this is reflected in their
customary law. The key features are summarized below
Significance of land and water One of the key differences
between ATSI and European legal tradition lies in the area of land
ownership. E.g. one of the main principles of European law is the
right to possess and own property. In ATSI law, land is sacred and
collectively owned. The land is central to their cultures and forms
the basis for religious beliefs and their law. The two following
contemporary cases demonstrate the growing recognition of the
importance of land and water to Indigenous Australians. In both
cases, traditional landowners were able to show that they had
maintained important spiritual and cultural links to traditional
land and waters :
Family and Kinship
Kinship is a reference to family relationships and extended
relationship ties It is an essential feature of IA communities
Traditions have been characterized by family networks living in
local communities This feature of such societies is significant
when making and enforcing laws.Ritual and Oral Traditions of ATSI
peoples Rituals practiced came from interpretations of the
Dreamtime Rituals were found in all areas of life, including
religion and customary law In a similar way to European Law, ATSI
customary law has a strong ritual element e.g. it was common for
tribal elders to paint their faces in red ochre before passing
judgement. One of the main features of the ATSI customary law is
that it is oral law, meaning that it is not written down. It is
instead transmitted via word of mouth. Each generation must
remember these oral laws and pass them on to following generations
One of the main issues with oral law is that it can be forgotten or
misinterpreted. To overcome this, Aboriginals ignored laws that
were misinterpreted to become unjust. This is one of its advantages
as oral law, its flexibility. In European law, changing the law
involves a long, time consuming process. Consequently, the law
legal system can become out of step with the expectations of
society.Mediation and Sanctions with ATSI Customary LawWe have
already discussed strong kinship links. Unlike many European
families, ATSI families tend to encompass aunts, uncles, cousins
etc. The kinship ties that each person has to all these relatives
override almost all other duties and responsibilities. Since these
bonds are so strong, mediation is the favored method of resolution.
Mediation involves all parties in a dispute talking and
negotiating, rather than handing out punishment to a person that
has breached tribal laws or customs When something cannot be solved
through mediation, conciliation (where elders of the tribe meet
with the criminals) is used. However, when a crime is too serious
for mediation or conciliation, punishments were applied. For
example, a member of the clan who breached religious law such as
disobeying rules for sacred sites, could be punished by death. The
figure below summarises the sanctions found in ATSI law:
Revenge was often used when a person had committed murder, where
the family of the victim was given the right to revenge on the
perpetrator of the crime. This often resulting in issues of larger
proportion, due to it being retribution-based rather than
resolution-based. Trial by Ordeal involved the accused and their
relatives running past victim and their relatives, who would throw
spears. The spears had blades removed to avoid serious injury. If
the accused was speared in the thigh, then the matter was at end.
Accused was forgiven, and everyone would dance. If he/she was not
speared, then further ordeal was necessary. Inquest was common for
ATSI societies to hold an inquest after a murder. One common
procedure required a relative of the victim to sleep with the head
resting on the stomach of the corpse. During the sleep, they would
dream of the murderer Fighting, insulting, social ridicule and
isolation fighting was another common way to punish suspected
murderers. One of the problems with this was when the accused was a
good fighter, which would lead to the injury of others and little
injury to the accused. Insults and social ridicule were also
common, where social interaction within the communities was
important. Therefore, having a whole clan ignore a person was very
effective punishment.Relevance between modern Australian law and
ATSI Customary Law There are great differences between the two,
however, features of customary law are taking on a greater role in
modern Australian law Mediation as a concept, which is key for ATSI
law, is now used in a number of Australian law areas including
family law, industrial relations, and increasing in criminal law,
where young offenders are involved. In 2000, the NSW Law Reform
Commission produced a report for sentencing of ATSI offenders.
Since they already faced Indigenous punishment with their laws, it
stated that judges should take this into consideration when
sentencing The recognition of customary law in Australia has been
debated highly, and in 1986 the report from the Australia Law
Reform Commission, The Recognition of Aboriginal Customary Law,
stated that customary law should be recognized where appropriate
but that a separate legal system for ATSI law should NOT be
established, as this would undermine the entire legal system.
8. Distinguish between domestic and international law and
examine the impact of state sovereigntyInternational law is the
body of law that governs the relationship between nations. Without
this law, nations would be unable to participate in trade and
commerce and there would be a greater likelihood of conflict
between nations. International law is very different to domestic
law. In the case of Australia, these are summarised below:
As demonstrated in the table above, the key differences between
the two are in the application of the laws. In Australia the
domestic laws are made for all, and therefore must be followed by
all people This is one of the cornerstones of our legal system,
where no one is above the law. However, in international law, the
legal principle of state sovereignty applies. This principle, which
is discussed further on, allows nations to decide the laws which
they agree to be bound by. International law is made very
differently compared to domestic law. They are made through
negotiations between countries. When a new international law is
proposed, each nation must decide whether they wish to participate.
The process of ratification requires the domestic government to
enact a domestic law accepting the terms of the international law.
Only then is the nation obliged to follow. Once this has occurred,
the country is said to be a party to the international law.State
SovereigntyThe notion of state sovereignty is at the centre of all
international law. It emerged at the same time as that of the
nation state - that all nations are fundamentally equal that each
nations rulers have the right to make decisions on the behalf of
the nation. Thus, state sovereignty presents a dilemma for
international law. By definition, a law requires that it be
enforced by some overriding authority, however, there is no world
government to enforce international law. The UN is not a world
government, but merely an organization of independent sovereign
states, and has no authority of its own. State sovereignty means
that nations have the right to refuse participation in
international laws. Nations can even refuse to participate in
hearings of international courts and tribunals, and this is the
fundamental weakness of all international law. Nations who wish to
disregard the interests of the global community and follow their
own agenda can do so without fear of consequence.
9. Examine the sources of international law
International law is created in several ways and is summarised
below:
Treaties (aka conventions, protocols, covenants or declarations)
and other International Agreements
A treaty is best described as an agreement between nations that
is entered into voluntarily. A treaty is different to a declaration
since it is binding and a declaration is non-binding. Nations who
enter into these have become parties to the agreement and are bound
by the conditions established within it. There are two main types
of treaties: Bilateral treaties: treaties between two nations e.g.
UK/Ireland Continental Shelf Boundary Agreement 1988. This
agreement defines the sea boundary between these two nations.
Multilateral treaties: treaties between more than two nations e.g.
the Antarctic Treaty (1959). This is between several nations that
have an interest in Antarctica. There is no prescribed way to make
a treaty, although most treaties are made through: Negotiation: the
various nations that have an interest in the treaty discuss the
clauses and conditions that the treaty will contain Consent to be
bound: the participating nations agree that they will be bound by
the conditions of the treaty. This commitment is demonstrated by
signing the agreement. Ratification: considered the most IMPORTANT
step. Involves the signatory nation passing domestic law to accept
the treaty. In a parliamentary democracy (like Australia), there
would be a Bill passed that accepts the treaty. Reservation: allows
nations to withdraw from a treaty or a part of it. Customs An
international custom is a rule that has been established because it
has a long tradition and has been widely followed. Until late 19th
century, all international law was customary law. Customary law is
considered too slow to be effective in creating international laws
in a rapidly changing world. Treaty law consequently became a far
more common means for establishing international law. International
customs still remain however, for example when a sea captain is
expected to stop and give assistance to another vessel in
distressLegal Decisions The International Court of Justice (ICJ)
deals with most disputes concerning international law. The court, a
part of the structure of the UN, has power to make rulings in
relation to treaties that nominate the court as the dispute
resolution mechanism Under the Statute of the International Court
of Justice, the international agreement under which the ICJ was
formed, legal decisions are considered a subsidiary means of
international law making. However, the rulings of the court, while
not necessarily setting precedent, are becoming an important source
of international law. This is because the ICJ has a tendency to
examine past cases before making rulings and there have been
several cases where treaty law has been amended or developed as a
result of ICJs rulings. Apart from the ICJ, there are other
international courts and tribunals. Sometimes these can too
establish aspects of international law. Cases involving war crimes
for example, are heard in ad hoc (on an as needed basis) war crimes
tribunals.
Legal Writings
Throughout history, the writings of legal academics have been
very important in influencing the direction of law making. During
the 16th to 18th century period, concepts of natural law which held
that law came from god and was above authority of the state were
dominant. Therefore, theologians and philosophers played a very
important part in the development of law, including international
law. While the role of legal writings in the formulation of
international law has decreased throughout the 20th century, this
is not to say that they have no role. Legal writings still
stimulate discussion and debate about the nature of international
law, and interestingly, when lawyers offer advice to their
governments or present to international courts and tribunals, they
often refer to legal writings. Positive Laws laws that are
generated by parliaments, monarchs and courts. Natural Laws laws
said to have been derived from god. They were considered more
important than the laws made by monarchs or courts.10. Describe the
role of various organizations involved in international law
The United Nations At the conclusion of WWII, the UN was formed,
with the main aim of establishing and maintaining world order and
peace. The Charter of the UN, completed in 1945, outlines the
principles, rules and ideals to which member nations of the UN
commit themselves. The UN has 192 members and a HQ in NY. When it
was first established, it saw itself as providing a forum for
nations in dispute, but would not intervene in any matter that was
domestic. This has attracted much criticism, due to the severity of
most civil wars. More recently, the UN has deployed a number of
peacekeeping forces to various places where internal conflicts have
developed. Whilst these deployments have demonstrated commitment by
the UN to the promotion of peace, they have been criticized as
ineffective. E.g. peacekeepers in Bosnia were not permitted to use
force to promote peace, though were only allowed in self-defence.
Whilst the UN receives a great deal of criticism, it remains a
powerful force in the promotion of world peace and international
law.The ICJ (Court) The ICJ is the main judicial organization of
the UN. It consists of 15 judges, each representing a geographic
region. ICJ has two main functions :1. To decide on disputes
brought before it by member nations2. To offer legal advice on
matter of international law when requested by a member nation The
ICJ is a court for nations only, not individuals, corporations or
organisations. Although, nations can bring a case before the court
on behalf of a citizen. Jurisdiction of the ICJ all member nations
are entitled to take matters before the ICJ. However, before the
ICJ will hear a case, the nations involved must recognize the right
of the court to settle the dispute. This will occur in one of three
ways: 1. A special agreement: when agreement is given in relation
to a specific dispute2. A clause in a treaty: there are more than
300 international treaties that nominate the ICJ to resolve
disputes between the signatories of the treaty. In this
circumstance, nations that sign agree to accept jurisdiction of the
ICJ.3. A unilateral declaration: some nations have agreed to accept
the jurisdiction of the ICJ in all matters. International Criminal
Court The ICC was created by a special treaty called the Rome
Statute, which became effective in 2002. At present there are 108
countries that are parties to the statute and are therefore bound
by the rulings of the court. ICC is a permanent court, dealing with
cases against individuals who have been accused of the most serious
of international crimes e.g. genocide, serious war crimes and
crimes against humanity
Role of Intergovernmental Organisations IGOs are orgs that
represent the governments of member nations. The UN is the most
significant IGO. There are many others, regionally based, such as
the European Union (EU). These orgs have their own international
laws and regulations. Some organizations have their own tribunals
and sanctions against members who fail to abide by these laws.Role
of NGOs They represent a variety of special-interest groups These
organisations are not recognized under international law and
therefore have no direct legal role For example, they cant bring a
case before the ICJ. However, NGOs play an important role in
applying political pressure to nations to abide by international
laws. E.g. Environmental groups worldwide have used media to apply
public pressure to governments Encouraging participation in
international law
11. Examine how international law impacts on and is incorporated
into Australian lawAustralia plays an active role in international
law. It was a founding member of the UN and has ever since been
involved.
Australia has also been active in UN peacekeeping activities
e.g. in Timor, Bougainville, Cambodia and Somalia. International
law plays an important part in Austrlian domestic law also. The
Tasmanian Dam case, as mentioned early in this paper, is an example
of the way international law affects the legal decisions made in
Australia. In this case, the fact that the rivers were World
Heritage Sites and thus protected by international law meant that
the TAS government was restricted from constructing dams there.
c) Classification of Law
1. Outline different types of law
Public Law
Laws in Australia can be classified into either public or
private laws. Public laws are referred to as social norms, and are
those that set general standards of behavior expected by society.
Public laws include: Criminal law, Administrative Law,
Constitutional Law.
Criminal Law
Usually established by statute, although sometimes through
common For e.g. rape crime was originally created through the
decision of judges, though eventually, statute laws were made for
criminal assault to replace the other rape crime. Criminal law is
public law because when a person breaks a criminal law, the effects
are said to harm all members of society Consequently, the victim of
these cases is also society This can be seen in the way criminal
law cases are written R v. Peterson [1984] WAR 329. The accused is
Peterson, but instead the victims name is R for Regina (the Queen).
Remember, she represents all people! There are seven
classifications of criminal law: Crimes against persons Crimes
against property Crimes against the state or sovereign (damage the
country and the people) Public order offences Traffic offences
White-collar crimes Drug offencesAdministrative Law Those that
relate to the operation of government and its various departments
Whenever a government agency or department forms, it is through the
passing of a law establishing it. E.g. the powers of the NSW Board
of Studies are outlined in the Education Act 1990 (NSW). In
addition to creating the government bodies, the act also outlines
the powers the body may exercise. This is known as administrative
powers.Constitutional Law A constitution is a legal document
outlining powers and operation of government In Australia, it is
democratic and the government must abide by the rules established
in it. The Australian Constitution mostly deals with the division
of power between the federal, state and territory governments and
the separation of power between the parliament, the High Court and
the Commonwealth Executive Power As discussed earlier, the High
Court deals with matters relating to constitutional law. The Court
hears cases where it is thought that the government has exceeded
its powers as outlined in the Constitution. (a case is mentioned
earlier for this)Private/Civil LawPrivate law is often referred to
as civil law and deals with the legal relations between individuals
and organisations. The key difference between criminal and civil
law is the role of the individual. In a criminal matter, society is
said to have been wronged and hence society brings the case. Under
civil law however, it is a matter between individuals. The person
who brings the actions is the plaintiff and the person the action
is against is the defendant. This is also evident in the writing of
cases, it always goes plaintiff v. defendant.
Contract Law A contract is a legally binding agreement between
two parties. Many civil law matters deal with contracts where one
party believes the other party has failed to fulfil the
requirements of the contract. Contract law stipulates that in order
for a contract to be valid and enforceable, then there must be : An
invitation to treat for instance, a shop that advertises a shirt
for $45 is inviting interested people to come and buy it An offer
In this example, an offer takes place when a person takes the shirt
to the counter to buy it Consideration - Under contract law, both
parties must benefit from it. Acceptance when the shop assistant
accepts the money, a contract comes into existence. When the shirt
is handed over, a contract is complete
Property Law Anything bought or sold is property. There are
numerous laws governing the way property transactions are to take
place. E.g. Fair Trading Act 1987 (NSW) is an example of a statute
that ensures businesses act properly when selling property
Insurance is a key aspect of property lawTort LawThe law of torts
is very complex area of law that involves civil wrongs. Torts are
not criminal matters but involve the actions of one inconveniencing
another, or breaching their rights. These torts are divided into
four areas: Negligence is a very common tort, and revolves around
the concept of duty of care. This states that every person and
organisation has the responsibility of ensuring that their actions
do not cause harm to others or their property. The duty of care
concept was established in this case:
Nuisance Involves one person interfering with another persons
rights. For example, a neighbor playing very loud music at night
may cause a nuisance to another person. Many cases heard in the
community justice centres involve this idea:
Defamation damaging another persons reputation. When misleading
info regarding a person is published and it damages their rep,
defamation has occurred. It is important to note that if the
information is accurate/true, then defamation has not occurred.
This is the most common defence to this tort. Trespass typically
takes place when a person interferes with the property of another
person.
2. Compare the purposes of different types of law
As mentioned in the 1st point of this area of the syllabus.
3. Distinguish between civil and criminal court procedures
Criminal Law Procedures
Two parties in a criminal matter are referred to as the
prosecution and the defendant. The prosecution represents the
community and is referred to as the Crown. In most criminal trials,
the Officer of the Director of Public Prosecutions (ODPP) conducts
the prosecution In a local court, for criminal matters, the
prosecution is done by a specially trained police officer known as
a Police Prosecutor. The defendant is the accused person, and is
represented by their barrister most of the time (they can represent
themselves) Criminal trials are heard before a jury of 12 people.
The role of the jury is to determine the case; that is to consider
whether there is sufficient evidence to convict the accused. The
role of the judge is to advise the jury and deal with questions of
law. There is a standard of beyond reasonable doubt to which the
jury must be convinced that the accused is guilty to find them
guilty This burden of proof always lies with the Crown, and
therefore, the defence could in theory say nothing and still be
found not guilty if the prosecutions evidence isnt sufficient
Civil Law Procedures Civil law proceedings involve disputes
between two parties that do not involve criminal matters Common
civil matters involve breach of contract and property disputes The
proceeding begins when the plaintiff issues a Statement of Claim
(legal doc that identifies the parties to the dispute and outlines
the circumstances of it) Once it has been issued, the other party
(defendant), issues a Statement of Defence. This process involving
the two statements allows for information to be shared between the
two parties, and many disputes are resolved through this If the
dispute remains unresolved, a trial is ordered Each side in the
trial has rights to introduce evidence and call witnesses in
accordance with the rules of evidence. This allows for
cross-examination by the opposing sides. At the conclusion of the
presentation of evidence, the judge is required to make a ruling
based on the evidence given by both sides. If the ruling is in
favour of the plaintiff, the judge will indicate what compensation
is required to give to the plaintiff. The standard of proof in
civil cases is determined on the balance of probability. This
standard is based on the evidence presented, who is more likely
telling the truth? The burden of proof with any civil matter lies
with the plaintiff.
4. Identify the role of legal personnel involved in the court
processJudges and Magistrates They preside over the courts They are
legally qualified professionals with considerable experience in the
law Most judges and magistrates once served as barristers Judges
sit in intermediate and superior courts, and their role is to
adjudicate cases (Adjudicate means to decide on points of law and
issue instructions to the jury.) The Judge is also required to
issue sentences and rulings In some civil cases, they may sit
without the jury, and therefore will also have to determine the
case. A magistrate sits in the inferior courts and their role is to
determine cases; that is to reach a verdict. Additionally, they
must also issue sentences and rulings.
Barristers Almost always receive their work through a solicitor
Solicitor approaches a barrister on behalf of a client, and
barrister represents their client in court. Most barristers
specialize in a particular area of law e.g. criminal law, family
law which allows them to develop considerable expertise The
barrister has two main functions:1. To provide legal advice, known
as an opinion, on the legal facts presented to them. This usually
includes some indication of the likely outcome, which allows the
client to decide a best course of action2. To present their clients
case in court (if the barrister has been briefed by a
solicitor)Solicitors Usually the person that someone who is seeking
legal advice will approach first. They may appear in court,
however, in most cases the majority of their work is non-litigious
(involving no court appearances). Their main duties are:
preparation of wills, family law issues, conveyancing, and drawing
up of contracts. The main role of a solicitor in a legal case is to
prepare the case (known as brief) for a barrister.5. Compare and
contrast common and civil law systems
Common Law Systems: As discussed earlier, Australias first legal
system is often referred to as a common-law system. This system
which was first developed in England, is still used in British
colonies and in Britain The key feature of the common-law system is
the ability if judges to make laws. This right is limited to where
a gap is found in statute law. It is important to remember that
where statute and common law both exist in the same area, statute
law prevails. (this is all detailed earlier)
Civil Law Systems As discussed earlier, civil law refers to
legal matters between two or more parties. However civil law as a
term has another meaning. It also describes the system of law that
developed Ancient Rome. To avoid confusion, it is referred to as
the civil law system. Laws in this legal system are almost entirely
derived from statute law. Much of Europe uses this system, as Rome
conquered Europe. Countries such as France, Germany, most of Africa
and Japan use this system The main difference between the two
systems is the role of the courts. Under a civil law system there
is no room for development of judge-made law. Judges are also
required to carry out investigations that is, to gather evidence.
This is known as an inquisitorial system. Under a common law system
(as used in Australia), judges CAN make laws; they do not seek
evidence, but rather make their decisions based on the evidence
presented to them on both sides. This is known as an adversarial
system